High Court considers application for judicial review over death at HMP Woodhill


Re: R. (On the Application Of  Canham) v Director of Public Prosecutions [2021] EWHC 3361

In this application for judicial review the claimant challenged the Director of Public Prosecution’s refusal to prosecute two prison officers (A and B), a member of healthcare staff (C), the Ministry of Justice (MoJ) and the National Offender Management Service (NOMS) for gross negligence manslaughter, a breach of the Health and Safety at Work Act, and corporate manslaughter, following the death of Robert Fenlon, a highly vulnerable prisoner, at HMP Woodhill on 5 March 2016.

The Claimant was Mr Fenlon’s ex-partner. At the time of the deceased’s death, HMP Woodhill had the highest rate of self-inflicted deaths of any prison in the country.

Mr Fenlon had a history of mental health issues. Following clear indications of a raised risk of self-harm or suicide, prison officers opened a file as part of the Assessment, Care in Custody and Teamwork process (“ACCT”) in February 2016. In the following days Mr Fenlon’s risk level was maintained as low despite several expressions of a wish to hurt himself. The risk level was only increased to high after Mr Fenlon attempted to hang himself on 3 March 2016. On 4 March Mr Fenlon was highly distressed, paranoid, expressed suicidal thoughts, and a noose was found in his cell. Despite this, his observations were only ever set at two per hour, he was not referred urgently to the mental health team, and no other steps were taken to keep him safe. Neither of the prison officers involved on 3 or 4 March knew Mr Fenlon or read his ACCT. On 5 March 2016 Mr Fenlon was found hanging in his cell and could not be resuscitated.

This challenge to the DPP’s decision not to prosecute raised several important issues.

First, that Article 2 imposes a procedural obligation to carry out a thorough and effective investigation, triggered in this case by the fact that Mr Fenlon took his own life while the care of the state. As a result, the Court was required to determine for itself whether a prosecution was required to comply with Article 2; it was not sufficient for the Court merely to ask whether the DPP’s decision was rational.

Second, that the decision not to prosecute the prison officers for gross negligence manslaughter was wrong on a number of grounds, including that: the identified breaches were very serious, were causative of death, and demonstrated indifference on the part of the officers to the obvious risk of death; the DPP’s decision did not recognise that multiple breaches could, cumulatively, amount to gross breach of duty; and the DPP’s decision failed to recognise that ‘grossness’ is supremely a matter for a jury to determine.

Third, the Claimant argued that the DPP’s refusal to prosecute suspect C for a breach of s.7 of the Health and Safety at Work Act was unlawful given C’s failure to make an urgent healthcare referral in circumstances where she had attended Mr Fenlon’s cell after he attempted suicide. The DPP had accepted for the purposes of gross negligence manslaughter than C had breached her duty to Mr Fenlon in these circumstances.

Fourth, the final challenge was to the decision not to prosecute the MoJ or NOMS for corporate manslaughter. The Claimant argued that this was unlawful because the underlying cause of Mr Fenlon’s death was the complete lack of continuity of ACCT case manager in his case. This was the fault of the MoJ or NOMS and in Mr Fenlon’s case it resulted in wholly inadequate decisions being made. If there had been a single case manager, different measures would have been put in place to protect Mr Fenlon, such as constant watch or an urgent referral to the mental health team.

Jesse Nicholls represented the Claimant in this case.